Posted by marykeating on January 27, 2011 under Workplace privacy | 
While many of us willingly give up the most private of information on facebook to our hundreds of “friends,” we value our ability to choose what we disclose, and perhaps naively think we control who has access to it. Employment background checks deprive us of the sense that we control what is revealed. They involve digging around for facts that we might NOT readily disclose. Perhaps worse, they might involve questioning of our acquaintances or prior bosses.
The Supreme Court unanimously decided an interesting case involving employees’ right to privacy, earlier discussed here. The case before the Court involved employees of a federal contractor working at a NASA lab who were for the first time required to submit to background checks. Many of these employees had worked at the California Institute of Technology for years on astronomical research. They had never applied for government jobs. Under a new rule suggested after 9/11. All employees given access to government facilities were required to go through the same background checks that government employees do. Twenty-eight employees sued.
The biggest objections arose with the questions about use of and treatment for illegal drugs, and the questions to references seeking any adverse information about the employee’s honesty, emotional stability, general behavior, financial integrity, and similar open-ended questions. The Court held that the government had an interest in assuring a capable and efficient workforce in its own facilities, and the questions were reasonably related to that goal. In somewhat circular reasoning, however, the court stated that the “reasonableness of such open-ended questions is illustrated by their pervasiveness in the public and private sectors.” That pervasiveness might also underscore the reasonableness of these scientists’ concern about being the subject of similar questions.
The Court swept aside issues of leaks: “the mere possibility that security measures will fail provides no ‘proper ground’ for a broad-based attack on government information-collection practices.”
The decision may turn out to be interesting not merely for its acceptance of the ubiquity of disclosure of private matters, and the value of opinions of others’ financial integrity. The opinion begins with a disclaimer, that the Supreme Court assumes, without deciding, that there is a constitutional righ to privacy in the form of an “interest in avoiding disclosure of personal matters.”
Posted by marykeating on January 25, 2011 under disability discrimination |
The Enoch Pratt Public Library in Baltimore settled a disability discrimination suit brought by an employee whose difficulty in walking was ignored by the library. She was not allowed to use a handicapped parking space, nor given access by a back door. Her parking space a block away was very difficult for her to manage. The employee has decided to retire on March 1, but in the meantime has been granted a parking space and access from the lot to the library.
Employers often have difficulty offering accommodations, though it’s unclear to me why that should be so. In this case, the employee not only asked for what she wanted, she evidently was visibly disabled. Yet nothing was done for years. That supported the settlement, but it looks as though the library lost an employee over it.
Employers have a harder time when a disability is not readily apparent. Ever wondered about someone who uses a handicapped space, and appears not to need it? The person may have a congestive heart condition, recent surgery on a knee, something else you can’t see. Employers, too, can make judgments that run afoul of the law. An employer is supposed to engage in an interactive process with the employee to explore what the employee might need to be able to perform the essential functions of the job. If the employee cannot do the job despite reasonable accommodations, then there is no discrimination, but an effort has to be made to try to make it work.
Posted by marykeating on January 24, 2011 under retaliation |
The Supreme Court has decided the retaliation case reported on here earlier. In a unanimous opinion, in which Justice Kagan did not participate, the high court held that an employer retaliates illegally when it fires a fiancé of an employee who filed a complaint of discrimination. The fired employee had lost in trial court, on the basis that he was not the person who had been the subject of the discriminatory conduct. The Supreme Court disagreed, and continued its trend of protecting the rights of people to object to discrimination, on behalf of themselves or others. The opinion says:
“We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.”
I think it should have been obvious that this kind of retaliation should not be legal, since, as the Court noted, “injuring him was the employer’s intended means of harming Regalado.” It is good to have this settled, though.
Posted by marykeating on January 20, 2011 under Interesting cases |
Everyone is addicted to electronic mail these days, and that is understandable. Email lets people quickly send off a note, a long letter, a copied link or other text. The same thing can be copied to multiple people, forwarded, printed, saved. A lost piece of paper can be a disaster; with an email, just reprint it.
The same conveniences can lead to unintended consequences. A California court just allowed an employer to collect and use emails sent by an employee through her work account. The employee surely thought that her own email address gave her some level of privacy, and that the communication would be privileged. The privilege of confidentiality between an attorney and client privilege can be destroyed if the privacy is not maintained. Once destroyed, a court may hold that none of the attorney-client communications are privileged, whether they were made by email or otherwise.
Most employers have policies about email use at the office. Many policies say that email can be used only for business purposes, others allow personal use within reason. The premise behind these policies is that the employer owns the computer, the network, and the email address. It could be held liable if email is used to perpetrate libel, to harass, or to spread pornography. Some employer policies are enforced, some don’t seem to be. The employer retains the ability to read emails, though, and for that reason employees need to be careful. Beyond the simple idea of keeping a line between one’s personal and work life, communications between an employee and her lawyer can be intercepted if the work email is used. This is a major threat in an employment dispute.
A New Jersey court recently held that communications sent over an employer’s network were privileged, where the employee had used a personal email account, and the communications were intercepted only because they physically went through employer-owned equipment. Before the employee won this issue, however, the employer probably read the emails. The best practice is to use personal email on a personal computer, where the account password is known to no one else.
Posted by marykeating on January 15, 2011 under Unemployment compensation |
The Department of Labor, Licensing and Regulation has just issued regulations relating to the amount of attorney’s fees that can be charged an unemployment claimant. Until recently, lawyers were permitted to charge a fee of $100 to represent someone at an unemployment hearing. After the hearing, the lawyer was permitted to request permission to charge up to one and one half weeks’ of the claimant’s benefit as a fee. As you might expect, few lawyers were willing to take these cases.
The new regulations, at COMAR 09.32.06.03(P) and COMAR 09.32.11.02(G), state that a lawyer may charge twice the weekly benefit as a fee without permission, and may ask for permission to charge more. This change should go a long way towards allowing unemployed Marylanders the opportunity to find representation. Challenges to unemployment benefits have risen with the tax rates. A finding of gross misconduct disqualifies the unemployed worker from benefits until he or she finds a new job and earns 26 times the weekly benefit. In other words, the workers’ next period of unemployment may be covered by benefits, but not the one in which a firing was deemed gross misconduct. It’s not easy to draw the line at what is gross misconduct, what is simple misconduct, and what is not misconduct at all. But since the line is usually drawn by a hearing examiner based on the testimony before him or her, the decision is ordinarily not overturned on appeal. The main action is at the hearing examiner level.
Employers’ lawyers may charge any amount for representing an employer at the hearing. By allowing lawyers for the unemployed worker to charge up to two weeks of benefits, the lawyer can afford to take the case, and hopefully make a difference in the outcome.
Posted by marykeating on January 13, 2011 under Collective rights |
The National Labor Relations Board has proposed to require that employers post a notice that gives their employers some information about their rights to act collectively. The Board notes that many other laws require posting, such as laws on minimum and overtime wages, and anti-discrimination laws. This rule would just add one more poster. Most non-government employers are covered by the National Labor Relations Act.
That’s not to say that the rule is met with delight. One of the reasons cited by the Board for proposing the rule is the perception that many people are unaware of their rights to organize and otherwise to work together. With fewer unions, there is less awareness of the right to create one, and to engage in pre-union activities. Of course, these activities are unpopular with most employers. The Board also hopes that the rule will educate employers who might otherwise violate the National Labor Relations Act, or dissuade them from union-busting activities, knowing that the poster gives employees the phone number and website of the NLRB.
Because the requirement would make posters available from the web, and simply add one more poster to a number of others already required to be posted, it may be difficult for opponents of the rule to find reasonable grounds for objection. The rule is open for comments until February 18, 2011.
Posted by marykeating on January 12, 2011 under Wage and hour issues |
They might have thought they were slaves, but according to a unanimous Supreme Court, they are working full time in a capacity similar to doctors, and must be paid and taxed as employees. This issue was resolved by the Court in the context of whether the hospitals using the residents services must pay social security and medicare taxes (FICA). Although residents are paid, they did not pay FICA taxes, nor have them paid by their hospital employers.
Hospitals have treated residents as students for decades. Resident training is a prerequisite to obtaining board certification allowing a doctor to specialize in a particular field. Although medical residents are still supposed to attend lectures and keep up with some studies, they also work grueling hours in hospitals. An exemption in the federal law governing wages and FICA taxes had allowed them to be classified as students if they work in the university, and regularly attend classes. Instead of a salary, the Mayo Clinic pays them a “stipend,” along with health insurance, malpractice insurance coverage, and vacation time.
The Treasury Department altered its interpretation of the law with respect to medical residents in 2004, leading to the case decided yesterday, Mayo Foundation, et al., v. U.S. (09-837). The new regulation removed the exemption for “students” working more than 40 hours per week for the university, even though the services have an instructional or training component. The Treasury Department “reasonably sought a way to distinguish between workers who study and students who work.”
Posted by marykeating on January 1, 2011 under Economic situation, Unemployment compensation |
Another study reports that people losing their jobs in the recession have often had to settle for less satisfying, lower wage jobs. According to a survey begun in 2009, more than half of the respondents finding a new full-time job earn less than they did at their former job.
While unfortunate, the worst news comes out of the “intransigence,” as the authors aptly put it, of unemployment. Sixty-four percent of their respondents had been out of work for at least a year, while more than a third had been searching for work for at least two years. More than half of the long-term unemployed have no health insurance.
Understandably, the respondents tend to believe that our economy has changed permanently, and for the worst. Many are now considering themselves the “involuntarily retired,” while the social security structure aims to keep people working longer.]
News reports of major companies sitting on plentiful cash and a thriving stock market create a real disconnect. With an economy based so thoroughly on consumer confidence and spending, putting more people to work here appears possible, and without a downside.
